Garnett (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of a visa applicant seeking a Contributory Parent (Migrant) (Class CA) visa, subclass 143. The applicant, a citizen of the United States, Canada, and the United Kingdom, is the biological father of an Australian child. The child's mother, an Australian citizen, and the child reside in Australia. The visa application was sponsored by a family friend, who is the review applicant before the Tribunal.

The primary legal issue before the Tribunal was whether the visa applicant met the sponsorship requirements stipulated in subclause 143.212(3) of the Migration Regulations. Specifically, the Tribunal had to determine if the sponsor, a family friend, qualified as a cohabitating spouse, a relative or guardian of the child, or a community organisation, as required when the child is under 18 years of age. The Tribunal also considered a request for Ministerial intervention under section 351 of the Migration Act 1958 (Cth), which allows the Minister to substitute a more favourable decision if it is in the public interest.

The Tribunal reasoned that the review applicant, the family friend, did not meet the definition of a sponsor under subclause 143.212(3). The applicant conceded, and the Tribunal found, that the sponsor was neither the child's cohabitating spouse, relative, guardian, nor a community organisation. Consequently, the sponsorship criteria could not be satisfied. Regarding the request for Ministerial intervention, the Tribunal noted the visa applicant's submissions concerning his efforts to maintain contact with his Australian child, the mother's refusal to sponsor him, and his belief that his presence in Australia would be in the child's best interests. However, the Tribunal concluded that the failure to meet the mandatory sponsorship requirements meant the decision under review had to be affirmed.